UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4526
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE ALVARO HENRIQUEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:06-cr-00516-JCC)
Submitted: June 9, 2008 Decided: July 14, 2008
Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Frances H. Pratt,
Assistant Federal Public Defender, Alexandria, Virginia, for
Appellant. Chuck Rosenberg, United States Attorney, Harold W.
Chun, Special Assistant United States Attorney, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jose Alvaro Henriquez pled guilty to unauthorized reentry
of a removed alien whose removal was subsequent to a conviction for
commission of an aggravated felony, in violation of 8 U.S.C.
§ 1326(a) and (b)(2) (2000). The district court properly
calculated Henriquez’s advisory Sentencing Guidelines range as 70-
87 months of imprisonment, and sentenced him to 70 months’
imprisonment. Henriquez timely appeals, alleging that the district
court’s sentence is procedurally and substantively unreasonable.
For the reasons that follow, we affirm.
After United States v. Booker, 543 U.S. 220 (2005), we
review a sentence to determine whether it is unreasonable, applying
a “deferential abuse-of-discretion standard.” Gall v. United
States, 128 S. Ct. 586, 591 (2007). A district court must engage
in a multi-step process at sentencing. First, the sentencing court
must calculate the appropriate Sentencing Guidelines range by
making any necessary factual findings. United States v. Moreland,
437 F.3d 424, 432 (4th Cir. 2006). Then the court should afford
the parties “an opportunity to argue for whatever sentence they
deem appropriate.” Gall, 128 S. Ct. at 596-97. Next, it should
consider the resulting advisory sentencing range in conjunction
with the factors set out in 18 U.S.C. § 3553(a) (2000), and
determine whether the § 3553(a) factors support the sentence
requested by either party. Id. Considering the factors in
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§ 3553(a) does not require the sentencing court to “robotically
tick through” every subsection of § 3553(a). United States v.
Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006), cert. denied, 127
S. Ct. 3044 (2007).
To determine whether a sentencing court abused its
discretion, we undertake a two-part analysis. United States v.
Pauley, 511 F.3d 468 (4th Cir. 2007). First, we examine the
sentence for “significant procedural errors,” and second, we
evaluate the substance of the sentence. Id. at 473. Significant
procedural errors include “‘failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence.’” Id. (quoting Gall, 128 S. Ct. at
597). “Substantive reasonableness review entails taking into
account the ‘totality of the circumstances, including the extent of
any variance from the Guidelines range.’” Id. (quoting Gall, 128
S. Ct. at 597). While an appellate court may presume a sentence
within the Guidelines range to be reasonable, it may not presume a
sentence outside the range to be unreasonable. Id.
Here, the district court followed the necessary steps in
sentencing Henriquez, and we find no abuse of discretion in its
decision to sentence Henriquez at the bottom of the Guidelines
range. Accordingly, we affirm the district court’s judgment. We
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dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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